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London Borough of Hillingdon, R (On the Application Of) v Mayor of London [2021] EWHC 3387 (Admin) (15 December 2021) View summary here.

White Waltham Airfield Ltd, R (On the Application Of) v Royal Borough Of Windsor And Maidenhead [2021] EWHC 3408 (Admin) (17 December 2021) View summary here.

Manchester City Council   v Secretary of State for Housing, Communities and Local Government [2021] EWCA Civ 1920 (16 December 2021) View summary here.

London Borough of Hillingdon, R (On the Application Of) v Mayor of London [2021] EWHC 3387 (Admin) (15 December 2021)

The Claimant, London Borough of Hillingdon, brought an application for judicial review of the decision made by the Mayor of London to grant permission for the construction of a mixed-use development, comprising buildings of up to 11 storeys in height, at the site of the former Master Brewer Motel in Hillingdon.

There were three grounds to the judicial review brought by the Council:

1. The Defendant misinterpreted Policy D9 of the London Plan 2021 by concluding that, notwithstanding conflict with Part B of that policy, tall buildings were to be assessed for policy compliance against the criteria in Part C;
2. The Defendant erred in failing to take into account a material consideration, namely, the Claimant’s submissions and accompanying expert evidence as to air quality; and
3. The Defendant acted unlawfully and in a manner which was procedurally unfair in that he failed to formally re-consult the Claimant or hold a hearing, prior to his re-determination of the application, following the adoption of the London Plan 2021.

The claim succeeded solely in respect of Ground 3, although Mrs Justice Lang refused relief under section 31 (2A) of the Senior Courts Act 1981. The claim was dismissed on all other grounds.

Ground 1 concerned the interpretation of Policy D9 of the London Plan 2021. The relevant parts of Policy D9 provide as follows:

A: “Based on local context, Development Plans should define what is considered a tall building for specific localities, the height of which will vary between and within different parts of London but should not be less than 6 storeys or 18 metres measured from ground to the floor level of the uppermost storey.”

B: “1) Boroughs should determine if there are locations where tall buildings may be an appropriate form of development, subject to meeting the other requirements of the Plan. This process should include engagement with neighbouring boroughs that may be affected by tall building developments in identified locations.
2) Any such locations and appropriate tall building heights should be identified on maps in Development Plans.
3) Tall buildings should only be developed in locations that are identified as suitable in Development Plans.”

C: “Development proposals should address the following impacts:

1. visual impacts […]
2. functional impact […]
3. environmental impact […]
4. cumulative impacts […]”

The Council submitted that the ordinary meaning of the words in Policy D9, read as a whole, sets out a clear process for the grant of planning permission for tall buildings. In terms of the definition and location of tall buildings, the Council submitted that the planning judgment of the local planning authority at the plan-making stage is given primacy. Policy D9 did not permit the Mayor of London to claim policy support for overriding the LPA’s judgment by reference to Part C when determining an application for planning permission. Rejecting this submission, Mrs Justice Lang found that there is no wording that indicates that Part A or Part B are gateways or pre-conditions to Part C – that is, when considering whether to grant permission for a tall building which did not comply with Part B(3), a decision-maker is permitted to rely on the factors set out in Part C. Further, the Council’ submission would lead to the absurd result that a decision-maker in those circumstances would be required to assess the impacts of the proposal in a vacuum.

On Ground 2, the Council submitted that the Mayor of London failed to take into account the Claimant’s consultation response and accompanying expert evidence (the AQE Report) on the issue of air quality. Mrs Justice Lang accepted the Mayor’s submission that he did not fail to take account of the evidence but rather exercised his planning judgment to conclude that the development would comply with the relevant policy in respect of air quality impacts.

As for Ground 3, the Council submitted that the Mayor of London acted unlawfully and/or in a manner that was procedurally unfair in that he failed either to formally re-consult the Council or hold a hearing prior to his re-determination of the application following the adoption of the London Plan 2021. The Council also submitted that the Update Report should have been published prior to the Council making its submissions to enable the Council to know how the GLA officers intended to advise the Mayor and that the Council should have been given an opportunity to comment on the Technical Note produced in response to the Council’s AQE Report. Mrs Justice Lang rejected the argument that fairness required another oral hearing. She also found that the Update Report did not need to be published prior to the council making its submissions, as it was clear that the Council was well aware of the issues to be addressed.

Regarding the Technical Note, Mrs Justice Lang held that it should have been disclosed to the Council as it was a response to their AQE Report, which could have been commented on in their representations to the Mayor if they so wished. The failure to disclose this Report was procedurally unfair and unlawful. However, Mrs Justice Lang found that it was highly likely that the Mayor would have granted planning permission even if the Council had made further submissions to the Mayor having considered this note. She therefore refused relief under section 31(2A) of the Senior Court’s Act.

Accordingly, the claim failed on Grounds 1 and 2, but succeeded in part on Ground 3. No relief was granted.

For further discussion see Simonicity.

Full Case

This was a claim by way of judicial review of the decision by the Royal Borough of Windsor and Maidenhead (the “Council”) to grant planning permission to the interested party (Sorbon Estates Limited) for the erection of up to 79 dwellings and a nursery building at Grove Park Industrial Estate in White Waltham (the “Site”). The claimant was the owner and operator of White Waltham Airfield (the “Airfield”), which lies adjacent to the Site.

The interested party applied for outline planning permission in November 2016, with access, layout and scale to be decided at outline stage and all other matters reserved. It subsequently submitted a noise assessment which identified the activities of the Airfield (which is not subject to any planning conditions or controls) as one of the principal sources of noise affecting the Site.

The claimant challenged the grant of outline planning permission on three grounds:

1. Firstly, the Council failed to take into account of, and reach a decision on, the issues raised by the Claimant regarding deficiencies in the noise assessment, which were material considerations. Further, it was a material error of law for the officer’s report (the “OR”) not to report the Claimant’s detailed objections to the Planning Committee. Alternatively, the conclusion in the OR that the noise survey results were robust was irrational, and inadequate reasons were given for the conclusion.
2. Secondly, contrary to the Planning Practice Guidance (the “PPG”) (and, in particular, the ‘agent of change’ principle), in failing to recognise the limitations of the noise assessment, the Council failed to take into account all the activities which the Airfield is permitted to carry out, as opposed to only the activities which were occurring on two days in September 2016 when the assessment took place.
3. Thirdly, the Council applied 66dB LAeq (16 HOURS) as a threshold above which there would be an amenity impact from the Airfield without considering the qualitative impacts together with the noise threshold of 55dB LAeq (16 HOURS), as set out in up- to-date guidance and policy and as used in the interested party’s own noise assessment. The lower threshold was clearly material.

It is notable that the claimant stated at the hearing that the challenge only related to the external impact on prospective residents (e.g. when sitting in gardens) and accepted that a condition attached to the permission would reduce the internal noise impact to an acceptable level and would not give rise to a risk of restrictions being imposed on the use of the Airfield.

The claim failed on all three grounds and so was dismissed.

On the first ground, Lang J agreed with the Council that the claimant’s objections were clearly referenced in the OR and given due regard. In addition, she found that the criticisms of the noise assessment did not come close to establishing that it was irrational for the planning officer to find that the methodology employed was acceptable and the results robust. No technical or scientific flaw in the methodology was identified and it was reasonable for the assessment to be undertaken over a continuous period of two days as this was likely to be reasonably representative; the interested party could not be expected to possess the claimant’s knowledge of different activities which take place at the airfield at different times. The claimant did not commission its own noise assessment to counter the findings of the noise assessment and so there was no alternative technical basis for the Council’s decision. As to whether the Council should have required further inquiries or assessments, Lang J noted that the court should only intervene if no reasonable authority could have been satisfied on the basis of the information before it and this high threshold was not reached. Ultimately, it was plain from the OR that the officer accepted the analysis and conclusions in the noise assessment (which found that noise levels in adjacent gardens would be acceptable by reference to the relevant policy thresholds) and that she was entitled to do so on the basis of the material before her; this was an exercise of planning judgment.

On the second ground, Lang J noted that the starting point is that a planning officer and planning committee can be assumed to take into account, and properly apply, the NPPF and the PPG unless there are positive indications to the contrary. She indicated that the claimant was seeking to elevate the PPG into a binding code which strictly prescribes the steps which a local planning authority must follow when undertaking its assessment (in this case, taking into account permitted activities as well as current activities) in order to avoid acting unlawfully. However, this was a mistaken approach since the PPG is merely guidance designed to support the NPPF. In this case, the Council was entitled to rely on the noise assessment and was not acting irrationally in concluding that the methodology employed in the noise assessment was robust and that it had sufficient information to enable it to reach a decision.

On the third ground, Lang J referred to the conclusion of the OR that the noise assessment confirmed that gardens adjacent to the airfield would have an unscreened outdoor noise level of approximately 54dB and so the proposal would be acceptable by reference to relevant guidance.  On this basis, she found that the planning officer specifically referred to and applied the advice in the noise assessment which was based on the most up-to-date guidance. The planning officer and the Planning Committee were entitled to reach this conclusion on the material before them; again, this was an exercise of planning judgment.

Comment: this case is another salutary reminder of the need to distinguish, in judicial review claims, between errors of law and matters which concern the exercise of planning judgment.

Full Case

The case involved a planning inspectors decision to refuse to impose conditions on the grant of planning permission on the ground they were unnecessary. The Court of Appeal upheld the ruling by Knowles J in the High Court that the planning inspector made an error of law in coming to this conclusion, and such a condition was necessary.

On 23 October 2019, Manchester City Council served an enforcement notice in relation to 3 Grandale Road, alleging a breach of planning control for a material change of use from C3 dwellinghouse to four commercial units with various uses. The recipients appealed to the Secretary of State under section 174 of the TCPA 1990, under ground (a): planning permission ought to be granted for the change of use. Under section 177(5), such an appeal is deemed as an application for planning permission for the alleged breach, which the Secretary of State may grant under section 177(6). The Council opposed the appeal, contending that planning permission ought not to be granted and, failing that, conditions should be imposed to limit use of the four units to the their specific current uses.

The inspector decided to grant planning permission for “material change of use of a dwellinghouse (Class C3) to form four commercial units operating as a travel agent (Class A1), 2 x couriers’ offices (Class B1) and therapy/medical treatment room (Class D1)”. The found the Council’s proposed conditions to be unnecessary.

The Secretary of State sought to uphold the inspector’s decision. They contended that the planning permission conceived of the four commercial units as a single planning unit, with sui generis mixed use across the whole property. Lewison LJ disagreed, and agreed with the Council’s view that the planning permission appeared to grant planning permission for the commercial units as four distinct planning units. He noted that the inspectors decision letter did not identify the extent of the planning unit(s), and made no mention of mixed use. It did, however, describe the breach as a change of use from a dwelling house “to form 4 commercial units”. The reference to the specific use class of each unit, as well as the specific type of use within that class, also pointed to four distinct planning units (if the units were to be taken as a whole sui generis use, there would be no need to specify use classes).

The consequence of this finding was that, under the planning permission (as granted) each unit would be deemed to fall within the stated class (rather than sui generis), allowing it to benefit from changes of use within the use class pursuant to section 55(2)(f). The inspector had therefore made an error of law in their decision, as the condition preventing such change of use was not unnecessary.

Full Case